Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 345
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The action was taken by Pelagic Weighing Services Limited and Killybegs Fishermen’s Organisation Limited, who had sought approval for their weighing system to ensure that the proper catch weight was recorded for the purpose of fishing quotas.

Giving judgment in the case, Mr Justice Garrett Simons noted that the European Commission had stated that a privately-owned weighing system was not acceptable. However, it was held that there was nothing in the relevant EU or domestic legislation which precluded private ownership of weighing facilities, and therefore found that the SFPA was acting unlawfully by failing to consider the application.

Background

The system for controlling fishing quotas was principally governed by Council Regulation (EC) No. 1224/2009, known as the Control Regulation. The Control Regulation was designed to give effect to fishing quota policy and obliged Member States to ensure that all caught fish were weighed.

The Regulation established that it was for a competent national authority to approve any weighing system for fish. Following a change in policy in April 2021 for the Commission, all weighing of fish had to be carried out on landing and the previous practice of weighing fish at a factory had to cease.

Under the EU Commission’s Implementing Regulation (EU) No 404/2011, it was established that it was permissible to have both publicly-owned and privately-owned weighing facilities. This was accepted by the SFPA.

Finally, under the Sea-Fisheries (Community Control System) Regulations 2016 (S.I. No. 54 of 2016), the State provided that both the SFPA and the National Safety Authority of Ireland would be responsible for approving weighing systems in Ireland.

The dispute in this case centred on the SFPA’s withholding of approval for a privately-owned weighing system for fish at Killbegs Port. Local fishermen had made a proposal for a “flowscales” which would allow for the weighing of fish on the pier. The fishermen were concerned that the existing weighbridge at Killybegs would lead to damage of the catch and result in lower prices.

The fishermen also proposed the flowscales so that they could remove sea water from the catch, meaning that the water would not be included in the weight for the purposes of fishing quotas. The proposal was approved by the NSAI, but was withheld by the SFPA.

In refusing to approve the flowscales, the SFPA cited correspondence from the EU Commission which stated that it was not appropriate for weighing systems to be privately-owned. It appears that there were concerns that privately-owned facilities could lead to fishing weight being improperly recorded.

The applicants claimed that the SFPA refused the application on the basis of this correspondence, while the SFPA claimed to have deferred the decision on approval pending further engagement with the EU Commission. As a result, the applicants brought judicial review proceedings against the SFPA.

High Court

At the outset of his judgment, Mr Justice Simons stated that the parties were in agreement that there was nothing in the Control Regulation or the Implementation Regulation which precluded private ownership of weighing facilities. This was agreed between the parties. As such, the court noted that the SFPA were not standing over the EU Commission’s position.

The court examined the relevant legislation and held that the EU Commission had no specific role regarding the approval of weighing systems. Rather, the approval was reserved for designated national authorities. The court said the EU Commission had no authority to impose a new legal requirement, which it contended for in its correspondence with the SFPA.

The court held that the SFPA had failed “to point to any proper legal basis for its continued failure to reach a decision – one way or another – on the approval of the pier-side weighing system at Killybegs Port”. Further, it was accepted that the EU SFPA was not bound by a decision of the EU Commission.

The court rejected a submission that it was reasonable for the SFPA to defer a decision on the system pending further engagement with the Commission. The court held that the gravamen of the applicants’ complaint was a jurisdictional challenge to the failure to make a decision on approval. It was not a merits-based challenge to a discretionary decision, the court said. Accordingly, it was not open to the SFPA to rely on the reasonableness ground under cases such as O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.

The court held that the SFPA had abdicated its statutory decision-making function in the case. The SFPA was obliged to regulate the approval of weighing systems itself and, although the Commission had general auditing functions over the SFPA, this did not give it any entitlement to make decisions on approval.

Finally, Mr Justice Simons rejected a challenge by the SFPA as to the locus standi of the applicants. The court held that Pelagic Weighing Services, as owner of the new weighing system, had sufficient standing to bring the proceedings. As such, it was unnecessary to consider whether the Killybegs Fishermen’s Organisation, as a representative body, had sufficient standing in the proceedings. However, considering Friends of the Irish Environment v. Government of Ireland [2020] IESC 49 and Construction Industry Federation v. Dublin City Council [2005] IESC 16, the court stated that there were in fact strong grounds for saying that the Organisation had sufficient standing in the case.

Conclusion

The court held that the SFPA had acted unlawfully by continuing to withhold approval for the new weighing system on the basis of the EU Commission’s stance on privately-owned facilities. The court provided a declaration to this effect.

On this issue of mandatory relief, the court held that there was an expectation that full effect would be given to the declaration and therefore mandatory relief may not be necessary. Further submissions from counsel were requested. The court gave a provisional view that one set of costs should be granted for the applicants, as it was not necessary for both applicants to have taken the proceedings.